The prison conditions in India are deplorable for hose living in the prison. These conditions were initially explored by many reports one of which is Prison Conditions in India, a report by the Human Rights Watch. The report explains how prisoners live in unhygienic conditions and most prisoners suffer from ill-health due to lack of proper medical care, unsanitary living conditions, issues of substance, violence, and many other problems. It is also noted that women face an additional barrier to accessing basic healthcare as their bodies are subjected to sexual and gendered violence. This brings out a very important gender dimension to the prison-medical complex, which is currently grappling with the effects of a global pandemic.

Not a lot has changed in the last twenty years since the aforementioned report was released. Most of the themes explored in the aforementioned report have also been reflected through a recent report, which calls for urgent reform in the Indian Prison System. This article is an attempt to explore how the current prison and judicial system is tackling the issue of preventing the spread of the Coronavirus in prisons, with the main focus on women in prisons.

Court, Prisons and Women

The Covid-19 pandemic could serve as a death sentence for most prisoners. Earlier this year, the Supreme Court had released guidelines for preventing the spread of Coronavirus in prisons, which included urgent hearings, creating isolation wards in prisons, and decongestion of prisons by granting bail to undertrials and convicts with a sentence under 7 years. However, even after guidelines to de-congest, hundreds of people in prisons have tested positive, undertrials have been denied bail, and those cases being investigated by CBI/ED/NIA/Special Cell Police and those being investigated for terror or anti-national charges have been denied bail. The Supreme Court gave the suo moto order that advised each state to form a High Powered Committee to determine who all could be released on bail or parole for purposes of decongestion. As per the order, there were two clauses for granting bail- first, that they are undertrials, and second, that they are serving a sentence of under 7 years. However, the High Powered Committees have added clauses to the guidelines which make it almost impossible to grant bail to undertrials and convicts, such as not granting bail to those accused of financial fraud.

Women in the prison systems of India remain a ‘custodial minority’ in terms of numbers, access, and rights, as claimed by Pratiksha Baxi and Navsharan Singh in their report, Gendering the Pandemic, where they analyse how prisons are not designed to support the biology of women or non-binary people as these are “foundationally male spaces”. Prisons in India do not cater to the basic needs of menstruating, pregnant, lactating, menopausal, and brutalized bodies. Other than deprivation of basic health care, women face sexual violence in prisons, often at the hands of prison and state officials. According to NCRB data, which is not reflective of the actual amount of incidents, 60 cases of custodial rape were reported in 2018 and 89 were reported in 2017, across India. The women’s prison population is also made up primarily of Dalit, Adivasi and other women from marginalised communities, as is detailed in a report by Citizens for Justice and Peace. The report explains that the social and economic status of these women becomes a hindrance to them defending themselves- legally and financially.

During the pandemic, in already unhygienic and unsafe conditions, many women are under the high-risk categories, especially pregnant and lactating women. Courts have made attempts to decongest women’s prisons across the country but this attempt seems insufficient. While studying bail orders of Delhi District Courts between 25.04.2020 and 12.05.2020, it can be observed that out of almost a thousand bail orders that were heard, only forty-two hearings involved women. Of these, bail was granted only in two cases and was denied in five, while others were adjourned, withdrawn, etc. In State vs. Shyama, a diabetic senior citizen was denied bail because the Court ruled that the applicant was receiving sufficient medical care by the prison authorities. Further, the courts do not seem to be considering the general health of women and the situation of the pandemic as a ground serious enough for bail. For instance, in the cases of State vs. Kanan Sarkar, where the female applicant suffered from ailments of tuberculosis and in State vs. Jyoti, where the female applicant wanted to be released to take care of her minor child during the pandemic, the bails are denied due to the applications not having ‘urgent’ or ‘strong’ grounds.

Demystifying The Real Threat

It can be noted that despite the Supreme Court advisory, most judgements did not deem Covid-19 as sufficient grounds for bail. In several cases, bail was denied due to accusations relating to damage to property and not necessarily to prevent harm to the accuser. Additionally, given India’s notoriety in custodial violence, poor healthcare, and deplorable prison living conditions, citing ‘sufficient care is being provided by prison authorities’ as a reason to deny bail seems blatantly unjust. Prison medical facilities are ill-equipped to deal with the aftermath of a global pandemic. Forcing some prisoners to remain in custody, wherein they may be abused on a regularly is unacceptable as it may subject them to violence and the additional health risks violent environments pose.

Other than the risks to the women in prisons, there numerous children in India who live in prisons so they are not deprived of their mothers who are in custody. Even though these children receive education, food, shelter, and other fundamental rights, prison is no place for a child to grow up in. According to the Home Ministry’s Prison Statistics, there were 1454 women with 1681 children in 2017 and 1738 women with 1999 children in 2018 in prisons. Though reports suggest that children are at a lower risk of getting sick with Covid-19, they do pose a danger to spreading the virus, especially since children cannot be expected to strictly follow preventive procedures such as wearing masks. There is insufficient information about what measures are being taken to take care of these children. Little is known as to how the children are being accommodated during this pandemic. Having insufficient information on this, one may only imagine what the mothers and the children are suffering from during this crisis.

The women in prison already suffer from various forms of violence in a system that does not address their basic biological needs like menstruation and lactation. Additionally, now they are not being granted bail during a pandemic, while many of their families’ lives also hang in the balance. Decongestion of women’s prisons is critical as the Indian prisons are ill-equipped to support women’s health on top of a global health crisis. The minimum effort that should be taken is to ensure that they can be away from a place which is a breeding ground for the virus.

Conclusion: Steps for the Future

There are many aspects of the prison system that need to be reformed in India. What is crucial right now is to ensure that the most vulnerable sections of the prison population are catered to through a rigorous decongestion process. The Supreme Court has already recognised the need for decongesting the prisons and has claimed that the liberty and rights of the prisoners must be protected by citing Article 21 of the Indian Constitution. The High Powered Committees should be cognizant of this and must relax the conditions for bail along with ensuring that women and children are provided with appropriate healthcare. Most of the amenities need to be provided by the state as discussed above. Most women who form the prison population come from marginalised communities, with little legal and financial means. It would be safe to assume that due to the lockdown and low employment rates, they would be unable to find sufficient financial means at the time.

Women-centric policies also need to be formulated and executed, not only to make prisons decent enough to occupy but also so that the effects of a health crisis in the future does not treat certain people of the population as expendable. In the longer run, the prison-medical system needs to become more accommodating in terms of catering to biological needs of women and other non-male bodies such as menstruation, lactation, susceptibility to vaginal infections, and the risk of being a woman in a male-dominated space wherein people in power have the impunity to inflict sexual violence on women. What is needed is a long-term policy for systemic reforms in the system, which is mostly male-dominated and operates in way that it reduces all reduce all women to biological degradation.

Title Image Source: The Conversation

The article has been written by Nivedita Gautam, who is a third-year student at Ashoka University. She is pursuing a major in Sociology and Anthropology and a minor in Political Science. Her interests lie in studying incarceration, violence, and social hierarchies. Currently, she is looking to get into academic or policy research.